Considered
and decided by Randall, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D
O P I N I O N

RANDALL, Judge

On
appeal in this custody dispute, appellant-father challenges the district
court’s award of sole physical custody and child support to
respondent-mother. Appellant also
challenges the district court’s order that appellant contribute to the child’s
post-secondary education, reimburse respondent for past-daycare expenses, and
the order that the parties share the costs of extracurricular activities.

We
affirm in part and reverse in part.

FACTS

G.J. was born on January 20, 2003 to respondent. Appellant was subsequently adjudicated G.J.’s
father pursuant to the district court’s order for temporary relief filed July
9, 2003. Appellant and respondent were
never married and never cohabited.

Appellant resides approximately 40 minutes from
respondent. Appellant, an independent
software developer, owns Kevin Olson Software Solutions (“KOSS”), a Minnesota C-corporation,
providing computer consulting services.
Appellant works 40 hours per week billing clients $85 per hour and
earning $35 per hour. As owner of KOSS,
appellant’s work schedule is flexible, allowing him to care for G.J. during
respondent’s work day. The parties
dispute the amount of appellant’s gross annual income and expenses. Richard C. Berning, respondent’s expert,
calculated appellant’s pre-tax income available for determination of child
support as $175,125, including a $70,000 salary and net corporate income of
$105,125, and net individual income of $120,976 ($10,081 net monthly
income). Karen Krita, appellant’s
expert, calculated pre-tax income as $112,760, and after-tax income as $80,509
annually or $6,709 monthly. Krita did
not include business income from KOSS in her calculations.

Respondent resides in St. Paul, Minnesota,
with G.J. and R.H., her eight-year-old daughter from a previous marriage. Respondent and her former husband have joint
legal and physical custody of R.H., and both acknowledge that respondent is R.H.’s
primary parent and decision-maker.

Respondent, a registered nurse, works in the operating
room at UnitedHospital earning $29.37 per hour. Respondent works two-12 hour shifts per week,
including either a day shift, 7:00 a.m. until 7:00 p.m., or a night shift,
11:00 a.m. until 11:00 p.m. Except for
her two-12 hour shifts, respondent is able to care for G.J. and R.H. Based upon her 2004 W-2, respondent earned
gross annual income of $41,897[1]
and net monthly income of $2,246[2]. Respondent claims monthly living expenses of
$3,071, which includes 100% of respondent’s fixed living expenses since
respondent does not receive child support for R.H.

Appellant brought a motion for temporary relief which the
district court heard on May 28, 2003, when G.J. was four months old. The July 9, 2003 temporary order granted
temporary joint legal custody, immediate parenting time to appellant, temporary
child support to respondent, and reserved the following issues: physical custody, the child’s
surname, and attorney fees. The order
permitted respondent to continue using daycare services. The temporary order referred the parties to
Ramsey County Domestic Relations for mediation and ordered a custody and parenting
time evaluation in the event mediation failed.
The parties attempted mediation but it was unsuccessful.

Kelly Gerleman, a “Family Court
Officer,” completed the custody evaluation.
Gerleman recommended joint legal and joint physical custody. Gerleman suggested a parenting time
arrangement where G.J. spends every other weekend with each parent and is in
appellant’s care while respondent is at work.

Appellant challenges the district
court’s award of sole physical custody and child support to respondent, the
parenting-time schedule, and the order that appellant contribute to an
education IRA, reimburse respondent for past daycare expenses, and share
extracurricular costs.

D E C I S I O N

I. Child Custody

Appellant argues
that respondent was procedurally precluded from seeking sole physical custody
due to an untimely request for such relief.
We disagree. Respondent
originally sought joint physical custody, however, changed her mind
approximately 15 months after the child’s birth and approximately one year
after the commencement of the case. The
“Family Court Officer,” Gerleman, submitted a recommendation for joint physical
custody on January 28, 2004 to which respondent replied expressing disagreement
by letter dated February 26, 2004. On
April 5, 2004 respondent formally filed a motion seeking an evidentiary hearing
on, among other things, child custody. The pretrial hearing was held on April 19,
2004 with the pretrial order, issued April 21, 2004, listing determination of
sole physical custody as a matter for trial.
The trial was subsequently held on January 25 and March 3, 2005.

Pursuant to Minn.
R. Gen. Pract. 303.03(a)(1) a motion must be filed with the court administrator
at least 14 days prior to the hearing.
Respondent complied with this requirement and timely filed her motion
seeking sole physical custody.
Appellant’s assertion of being unaware of respondent’s position on child
custody is contrary to the record.

Appellant
argues that several of the district court’s findings supporting its custody
determination are clearly erroneous. A reviewing court will conclude that a finding
is clearly erroneous if it is left with the definite and firm conviction that a
mistake has been made. Vangsness v.
Vangsness, 607 N.W.2d 468,
474 (Minn.
App. 2000). When considering a challenge
to the district court’s findings, we view the record in the light most
favorable to the district court’s determination and give deference to the
district court’s credibility determinations.
Id. at 472; seeIn re Welfare of D.L.,
486 N.W.2d 375, 380 (Minn.
1992) (stating that “the trial court retains broad discretion because of its
opportunity to observe the parties and hear the witnesses”).

Appellant disagrees with the court’s finding that the
parties are incapable of cooperation.
The record indicates that the parties initially were able to cooperate
and put G.J.’s best interests above all else.
Respondent originally agreed to joint physical custody on the condition
that respondent was G.J.’s primary caretaker and provided for G.J.’s primary
residence, an arrangement similar to that of respondent and her former husband
regarding R.H. The district court found
that “[t]here is no evidence that the parties can cooperate with one another as
joint physical custodians. To the
contrary, the evidence shows there is deep disagreement over the role of Ms.
Jax in [G.J.’s] life, disagreement which has resulted in minimization of
contact and communication.” At trial,
Gerleman expressed concerns regarding the parties’ ability to cooperate. After reviewing the record in the light most
favorable to the district court’s findings, we conclude these findings are
proper.

Because appellant
was willing and able to care for G.J. and actively took steps to learn more about
caring for a young child, joint physical custody in this instance could have
realistically been considered. G.J. has bonded with both parents and less time
with appellant could hinder the continued growth of this bond with
appellant. It appears as though the
court may have rewarded respondent for having parenting experience while
simultaneously penalizing appellant for being a first time parent. But, based
on our deferential standard of review of factual determinations, we cannot
conclude that the district court’s findings are clearly erroneous. See
Vangsness, 607 N.W.2d at 474 (“That the record might support findings other
than those made by the trial court does not show that the court’s findings are
defective.”). The district
court did not abuse its discretion in awarding respondent sole physical custody.

II. Parenting Time

A district court has broad discretion when determining a
parenting-time schedule and will not be overturned absent an abuse of
discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). When requested by either parent, the district
court must grant parenting time to “enable the child and the parent to maintain
a child to parent relationship that will be in the best interests of the
child.” Minn. Stat.
§ 518.175, subd. 1(a) (2004).

Appellant argues that the district court abused
its discretion by linking appellant’s parenting time to respondent’s work schedule. Appellant fears that a change in respondent’s
work schedule (for example, to a 9:00 a.m. to 5:00 p.m. workday) would deprive
him of parenting time and/or force him to expend time and money in bringing
respondent back to court. However,
appellant, due to his self-proclaimed flexible work schedule, suggested and
stipulated to a parenting schedule based on respondent’s work schedule. Since appellant proposed caring for G.J.
while respondent was at work, the district court did not abuse its discretion
in setting such a parenting-time schedule.
The parties will realize that as their child grows, their schedules will
inevitably require adjustments.

III. Child Support

Appellant disagrees with the
district court’s award of child support.
A district court has broad discretion in ordering child support. Putz v.
Putz, 645 N.W.2d 343, 347 (Minn.
2002). The district court abuses its
discretion when it sets support in a manner that is against logic and the facts
on record or misapplies the law. Rutten
v. Rutten, 347 N.W.2d 47, 50 (Minn.
1984) (against logic); Ver Kuilen v. Ver
Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998) (improper application of
law).

Appellant disagrees with the district
court’s determination of his income. Determination
of the amount of an obligor’s income for purposes of child support is a finding
of fact and will not be altered on appeal unless clearly erroneous. Ludwigson
v. Ludwigson, 642 N.W.2d 441, 446 (Minn.
App. 2002). “Income from self employment
is equal to gross receipts minus ordinary and necessary expenses.” Minn. Stat. § 518.551, subd. 5b(f)
(2004). The district court has broad
discretion to determine the income of a self-employed parent; “the opportunity
for a self-employed person to support himself yet report a negligible net
income is too well known to require exposition.” Ferguson v. Ferguson, 357 N.W.2d 104, 108 (Minn. App. 1984). The district court may consider cash flow,
particularly when the calculation of income is a “difficult task.” Schelmeske
v. Veit, 390 N.W.2d 309, 311-12 (Minn.
App. 1986). The court may also consider
a person’s lifestyle when it is inconsistent with reported income and personal
expenses. Johnson v. Fritz, 406 N.W.2d 614, 616 (Minn. App. 1987).

The
district court reviewed appellant’s past tax returns and lifestyle, comparing
pre-incorporation tax returns from 2001 and 2002 with appellant’s
post-incorporation earnings. Appellant’s
2001 and 2002 earnings, $174,406 and $139,292, respectively, were comparable
with appellant’s pre-tax total business income of $175,125, versus a claimed salary
of $70,000. The district court found
appellant to have monthly disposable income of approximately $10,000. The district court also found appellant’s
claimed living expenses of $3,287.80, including variable expenses for
entertainment ($300), gifts ($100), vacations ($150), personal care ($50), and
books/magazines ($100), unsupported by the record and unreasonable if
appellant’s income was as he claimed. The
district court utilized Berning’s report and figures calculating appellant’s
net income, favoring Berning’s data after finding appellant’s expert less
credible. SeeSefkow v. Sefkow, 427
N.W.2d 203, 210
(Minn. 1988)
(stating that the appellate court defers to credibility determinations made by
the district court).

Appellant
next argues the district court erred by mechanically applying the guidelines
and failing to consider other statutory factors. The child support guidelines establish a
rebuttable presumption that a child support obligor owes a fixed percentage of
the obligor’s net income based on that income and the number of children to be
supported. Minn. Stat. § 518.551,
subds. 5(b), (i) (2004). After
determining appellant’s net income, the district court properly ordered child
support based on the guidelines effective at the time of the order: 25% of appellant’s net income capped at
$6,975, resulting in a maximum amount of child support of $1,743.75 per
month. Any errors made were de minimis
because the amount used for calculating support was capped at $6,975, which is significantly
less than appellant’s monthly disposable income of $10,000.

Finally,
appellant argues for a downward deviation in child support since the
statutorily provided amount exceeds the child’s needs and will consequently
benefit respondent. It is improper for
child support to “upgrade” the obligee’s standard of living, however, a child
should benefit from the standard of living of both parents. State
v. Hall, 418 N.W.2d 187, 190 (Minn. App. 1988), review denied (Minn. May 4, 1988) (upgrade standard of living); Thompson v. Newman, 383 N.W.2d 713, 716
(Minn. App. 1986) (child should benefit).
G.J. is entitled to benefit from appellant’s standard of living and the
district court followed the statutory guidelines in awarding child support.

IV. Education IRA

The district
court ordered: “Commencing in 2004, Mr.
Olson shall contribute $2,000.00 per year to a Cloverdell Education IRA for the
minor child.” Appellant argues that his
willingness to contribute was conditioned upon a lower child support obligation
and that the district court abused its discretion by ordering appellant to make
annual contributions to an education IRA when he had already been ordered to
pay the statutory cap in child support.
We agree. At one point during
negotiations, appellant voluntarily agreed to contribute $2,000 annually to a Cloverdell
Education IRA; however, negotiations between the parties failed. Nothing in the record supports an unconditioned agreement by appellant to make
that annual contribution.

The district
court’s imposition of a Cloverdell IRA contribution, over and above child
support, constituted an upward deviation without findings of fact. See Minn. Stat. § 518.551, subd.
5(i) (2004) (stating that “if the court deviates from the guidelines, the court
shall make written findings giving the amount of support calculated under the
guidelines, the reasons for the deviation, and shall specifically address the
criteria in [Minn. Stat. § 518.551, subd. 5(c) (2004)] and how the deviation
serves the best interest of the child”).
We reverse in favor of appellant on this issue.

V. Extracurricular
activities

Appellant argues
the district court abused its discretion by requiring him to share the costs of
G.J’s extracurricular activities. A
district court has broad discretion in determining child support and will be
reversed for abuse of discretion only if there is a “clearly erroneous
conclusion that is against logic and the facts on record.” Rutten,
347 N.W.2d at 50.

Regarding this
issue, the district court stated:

Extracurricular Activities. The parties shall be equally responsible for
the cost of any extracurricular activities in which they have enrolled the
child, provided that the parties agree on such enrollment in advance. If a party chooses to enroll the child in an
extracurricular activity without the express consent of the other party, then
he or she shall be solely responsible for any costs associated therewith. The party incurring the costs shall immediately
notify the other party by copying him or her with the invoice for said costs
and reimbursement payment shall be made within thirty (30) days of receipt of
said expenses. In the event a party does
not timely notify the other of such an expense, reimbursement shall be deemed
waived.

Respondent
conceded that the paragraph appears ambiguous and that appellant cannot be held
responsible for the costs of any activities unless he expressly agrees to
enrollment in such activities in advance.
This paragraph presents a purely voluntary undertaking for the parent
who wishes to enroll G.J. in an extracurricular activity. This paragraph does not constitute an upward
deviation of child support because it is not mandatory; appellant has choices.

In McNulty v. McNulty the court ordered an
upward deviation to cover a child’s significant education and extracurricular
expenses. 495 N.W.2d 471, 473 (Minn.
App. 1993), review denied (Minn. Apr.
12, 1993). The court found the case to
be unique since appellant’s support expenditures were regular, ongoing, and
dedicated to the child’s existing needs and expenses. Id. Further, “[t]he payments did not create, but
rather, continued [the child’s] accustomed standard of living. Id. Here, the minor child was only two years old
at the time of trial and had not yet become accustomed to any standard of
living and was not participating in any activities. The court’s order simply created a purely
voluntary arrangement by which the parties may agree to share the costs of G.J.’s
activities.

VI. Past Daycare Expenses

Appellant argues that the district
court abused its discretion in ordering him to reimburse respondent for past
daycare expenses. We disagree. It is within the district court’s discretion
to award daycare expenses in its consideration of child support. Minn. Stat. § 518.551, subd. 5(b)
(2004). Daycare expenses should be
allocated “to each parent in proportion to each parent’s net income, as
determined under this subdivision, after the transfer of child support.” Id.

The district court ordered appellant
to reimburse respondent $5,329, or 50% of respondent’s total expenditure for
daycare expenses incurred from May 2003 through April 2005. Appellant argues that he should not be liable
for past daycare expenses since he was available and offered to care for G.J.
while appellant was at work. Appellant
cites Minn. Stat. § 518.175, subd. 8 (2004), which states that the “court
may allow additional parenting time to a parent to provide child care while the
other parent is working if this arrangement is reasonable and in the best
interests of the child.” The 2003
temporary relief order permitted respondent to continue utilizing daycare
services, and it structured a parenting time schedule around respondent’s use
of daycare services. Even though
appellant was willing and available, it was within the court’s discretion to
award respondent continued use of daycare.

Appellant argues that the district
court failed to use the statutorily prescribed formula in calculating each party’s
responsibility for daycare expenses.
“The cost of child care for purposes of this paragraph is 75% of the
actual cost paid for child care, to reflect the approximate value of state and
federal tax credits available to the obligee.”
Minn. Stat. § 518.551, subd. 5(b) (2004). The district court equally divided the
$10,658 of total daycare expenses between appellant and respondent. However, the total expense should have been
reduced by 25% and subsequently allocated to the parties based on net income
after the transfer of child support.
Using the figures adopted by the court, retroactive daycare expenses
should have been apportioned $5,223 to appellant and $5,435 to respondent. Although the district court failed to use the
statutorily prescribed method of dividing daycare expenses, the difference in
the end result was de minimis.

VII. Due Process

Appellant argues
that he was denied his Fourteenth Amendment right to due process of law. Appellant asserts that due to his attorney’s
inability to cross examine witnesses and re-direct witness testimony, many of
the findings in the judgment and decree were erroneous. Appellant, however, failed to develop his
argument or cite any supporting legal authority. If a brief does
not contain an argument or citation to legal authority in support of the
allegations raised, the allegation is deemed waived. State
v. Krosch, 642 N.W.2d 713, 719 (Minn.
2002). Also, if a brief fails to make or
develop any argument at all, the issue asserted is considered waived. State
v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) review denied (Minn. Aug. 5, 1997).

Appellant
expresses displeasure with the court’s decision to limit the length of the
trial, thereby restricting his attorney’s ability to comprehensively question
witnesses. The record shows that the
trial was originally scheduled for a half day hearing but was extended to a
trial lasting a day and a half. The
record shows that, excluding the parties, seven witnesses were called: six by appellant and only one by
respondent. Appellant utilized his share
of the trial time. Appellant never moved
for a continuance or asserted an emergency situation requiring an extension of
the trial. Appellant’s due process
rights were not violated.

VIII. Name change

Appellant argues
that the district court should have ordered the child’s last name to be changed
from respondent’s to his. The district
court’s decision to grant or deny a name change is reviewed under an
abuse-of-discretion standard. In re
Welfare of C.M.G., 516 N.W.2d 555, 561 (Minn. App. 1994). A district court “shall” grant an application
for a change in a minor child’s name unless the court finds that the change is
not in the best interests of the child. Minn. Stat.
§ 259.11(a)(3) (Supp. 2005). But,
“judicial discretion in ordering a change of a minor’s surname against the
objection of one parent should be exercised with great caution and only where
the evidence is clear and compelling that the substantial welfare of the child
necessitates such change.” In re
Saxton, 309 N.W.2d 298, 301 (Minn.
1981) (citation omitted). “When granting or denying a petition for a name
change, the court must set forth clear and compelling reasons for its
decision.” LaChapelle v. Mitten,
607 N.W.2d 151, 166 (Minn. App. 2000) (citation omitted), review denied
(Minn. May
16, 2000). When determining a child’s best interests, the district court should
consider: (1) the child’s preference;
(2) the effect of a name change on the child’s relationship with each parent;
(3) the length of time the child has had the current name; (4) the degree of
respect the present and proposed names have within the community; and (5) the
potential the name change might have to cause harassment or embarrassment. Saxton, 309 N.W.2d at 301.

Appellant argues that
the court’s decision to deny appellant’s name change request was based upon a
mischaracterization of appellant’s testimony.
Specifically, appellant believes the court misunderstood the following
comment made during trial: “And if they
find out his sister has her father’s name but he doesn’t have his father’s
name, that’s almost like adding a kick me sign to his back.” The district court misconstrued appellant’s
statement at trial, stating in the order, “Mr. Olson testified about the name
change in terms of his own interests,
saying ‘I might as well have a ‘kick me’ sign on my back if [G.J.] doesn’t have
my last name.’” Appellant’s assertion is
correct. However, the court listed
additional reasons for denying appellant’s motion for a name change, finding
that appellant had not met his burden of showing how the change would benefit
the child. G.J. has been known in the
community with his current surname since birth.
It is in G.J.’s best interest to have the same surname as respondent,
his physical custodian. The district
court did not abuse its discretion by concluding the child’s best interests
were served by denying a change in surname.

(1) that the
fees are necessary for the good-faith assertion of the party’s rights in the
proceeding and will not contribute unnecessarily to the length and expense of
the proceeding;

(2) that the
party from whom fees, costs, and disbursements are sought has the means to pay
them; and

(3) that the
party to whom fees, costs, and disbursements are awarded does not have the
means to pay them.

Minn. Stat. § 518.14, subd. 1. Here, the district court extensively reviewed
each party’s financial situation, concluding that respondent was entitled to
need-based attorney fees and that appellant had the means to pay them. A review of the record indicates that the
district court did not abuse its discretion in awarding respondent need-based attorney
fees.

Then, because the district court
also awarded conduct-based attorney fees, the district court must make findings
regarding their basis “to permit meaningful appellate review.” Kronick
v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992). To support such an award, the district court
must identify the offending conduct, the conduct must have occurred during the
proceedings, and the conduct must be found to have unreasonably contributed to
the length or expense of the proceeding.
Minn. Stat. § 518.14, subd. 1; Geske
v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001). A showing of bad faith is not necessary to
support an award of conduct-based attorney fees. Id.

The district court found that
appellant increased the length of trial by claiming substantially lower earned
income, thereby requiring respondent to employ an expert. We disagree.
The issues of child custody and child support were contentious here, as
they often are. The district court found
that appellant failed to provide full and complete discovery. We note that the financial composition of a
self-employed individual was involved in this case, and the issue of
calculating income available for child support was complex. Two experts presented varying calculations,
demanding that the district court make accuracy and reliability determinations. We reverse the district court’s award of
conduct-based attorney fees to respondent; she will still receive her
need-based attorney fees.

Affirmed in part
and reversed in part.

[1] Respondent earned gross
wages of $44,697 in 2004; however, $2,800 was a nonrecurring bonus. Respondent’s expert removed the bonus to
reach gross annual income of $41,897.
Respondent’s net income is $26,954.

[2] Respondent’s expert
calculated her net monthly income to be $2,329 if respondent were able to
eliminate $1,000 per year in pre-tax daycare cafeteria plan contributions.